Bishop v. Bell
| Decision Date | 31 May 1878 |
| Citation | 2 Bradw. 551,2 Ill.App. 551 |
| Parties | DANIEL J. BISHOPv.DAVID BELL. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of McLean county; the Hon. T. F. TIPTON, Judge, presiding.
Messrs. ROWELL & HAMILTON, for plaintiff in error; that want of probable cause and malice must both exist, cited Leidig v. Rawson, 1 Scam. 272; Jacks v. Stimpson, 13 Ill. 702; Mitchinson v. Cross, 58 Ill. 366.
As to what is probable cause, or a want of it: Wade v. Walden, 23 Ill. 425; Bourne v. Stout, 62 Ill. 261; Ross v. Inness, 35 Ill. 488; Chapman v. Cawrey, 50 Ill. 512; Barrett v. Spaids, 70 Ill. 408; Anderson v. Friend, 71 Ill. 475; Harpham v. Whitney, 77 Ill. 32; Ames v. Snider, 69 Ill. 376; Wicker v. Hotchkiss, 62 Ill. 107.
Messrs. FIFER & PHILLIPS and KARR & KARR, for defendant in error; that a verdict will not be disturbed unless manifestly against the evidence, cited Lowry v. Orr, 1 Gilm. 70; Morgan v. Ryerson, 20 Ill. 343; Martin v. Ehrenfels, 24 Ill. 187; Pullian v. Ogle, 27 Ill. 189; Wallace v. Wren, 32 Ill. 146; Dietrich v. Rumsey, 45 Ill. 209; Underhill v. Fake, 46 Ill. 50; Bunker v. Green, 48 Ill. 243; Chicago v. Logerson, 60 Ill. 201; Robinson v. Parish, 62 Ill. 130; Chapman v. Stewart, 63 Ill. 332.
Malice may be inferred from want of probable cause: Leidig v. Rawson, 1 Scam. 272; Jacks v. Stimpson, 13 Ill. 702; Ross v. Inness, 35 Ill. 487; Mitchinson v. Cross. 58 Ill. 366; Thompson v. Force, 65 Ill. 370; Montross v. Bradsby, 68 Ill. 185.
Although instructions may be erroneous, a new trial will not be granted if it is apparent from the record that a re-trial will not change the result: McConnell v. Kibbe, 33 Ill. 176; Curtis v. Sage, 35 Ill. 22; Coursen v. Ely, 37 Ill. 338; Root v. Curtis, 38 Ill. 192; Boynton v. Holmes, 38 Ill. 59; Potter v. Potter. 41 Ill. 80; Watson v. Woolverton, 41 Ill. 241; Clark v. Pageter, 45 Ill. 185; Rankin v. Taylor, 49 Ill. 451; Stobie v. Dills, 62 Ill. 432; Charter v. Graham, 56 Ill. 19; Letteck v. Honnold, 63 Ill. 335.
In order to justify under the advice of counsel, the party must lay all the facts before him: Ross v. Inness, 35 Ill. 487; Collins v. Hayte, 50 Ill. 337.
This was an action on the case brought by defendant in error against plaintiff in error for malicious prosecution in causing his arrest before a justice of the peace for establishing a tent or booth for vending refreshments during a camp or field meeting being held for religious purposes, within one mile of the place of holding said meeting, without the permission of the authorities having charge of said meeting.
The case was tried before a jury in the court below, and a verdict and judgment rendered against plaintiff in error. Plaintiff brings the case here and assigns numerous errors, among which are, the overruling a motion for a new trial, and the giving improper instructions on behalf of defendant.
The 59th section of the 38th chapter of the Revised Statutes of 1874 provides, among other things, that whoever, during the time of holding any camp or field meeting for religious purposes, and within one mile of the place of holding such meeting, without the permission of the authorities having charge of such meeting, establishes any tent, booth, or other place for vending provisions or refreshments, etc., shall be fined not exceeding $100.
The evidence in the record shows that a camp meeting was being held in McLean county for religious purposes, and that while it was in progress the defendant in error rented a piece of ground of one Rankin, just opposite to the entrance to the camp-ground, and about a quarter of a mile from the ministers' stand, and put up a tent on it. In the tent defendant had put up a cooking stove, and had a table with dishes on it; in the back part of the tent were tubs and buckets, with provisions in them, and in front of the tent a board was put up for a counter, upon which were cigars, peanuts and lemonade. This tent was put up on Friday, and on that day and the next defendant in error was warned of the consequences of his conduct, and the law read to him forbidding his selling. Plaintiff in error stated the facts to an attorney-at-law, who advised an arrest. Under these circumstances plaintiff in error swore out a warrant against defendant on Saturday, upon which he was arrested, and gave bail for his appearance before a justice on the following Monday, when he returned to his tent, and on Sunday morning procured an additional supply of dishes, and was apparently again preparing for business, when plaintiff caused another warrant to issue, upon which he was also arrested and held until the following day, when, after a change of venue, he was acquitted upon both charges. The evidence also shows that after defendant was discharged on these two charges he was again arrested on a warrant issued by another justice, but we are unable to determine from the record what connection, if any, plaintiff had with this last arrest.
In the 1st, 2d, 3d, 4th and 5th instructions given by the court for defendant in error, the court substantially instructed the jury that if plaintiff in error, caused the arrest of defendant without probable cause, then plaintiff below was entitled to recover. Each of these instructions wholly ignore the question of malice.
These instructions do not correctly state the law. This was a suit for malicious prosecution, and...
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